Be very circumspect when dealing with collection agencies and that includes firms of attorneys that specialise in this area of the law.

Do not believe everything that you are told by a collection agent or attorney as they will look after their own interests and those of their client; before they give a thought to you and your interests.

Prescription of a Debt: What does it mean? Part 2:

Today we will continue our discussion on prescription as a defence to a claim instituted by a creditor against a debtor.

We learnt last time that a debt normally prescribes 3 years after it becomes due and payable.

We also learnt that if you are sued and wish to raise a defence of prescription you have to file a special plea (defence) of prescription; and the court will not, of its own accord, take cognizance of prescription; unless it is specifically raised as a defence on the court papers and in evidence before it.

We also learnt that if you want to rely on that defence (prescription); you must prove:

When the debt became due and payable; and

That the Creditor was aware that it was due and payable and also was aware of the identity of the actual debtor; and

That three years had now transpired since that date; without an acknowledgement of liability from the debtor to the creditor; and

Also that no other interruption of prescription had taken place during that time frame.

Many of us are persecuted by collection agents and some firms of attorneys that specialise in the collection of debts. They literally bombard you with e-mails and SMSes and their actions border on harassment. Often these collection agencies buy up old debt from creditors and then take action based on their cession of the debt from the original creditor against the debtor. Sometimes this is done honestly and ethically and sometimes it is not!

One has to be very circumspect when dealing with collection agencies and that includes firms of attorneys that specialise in this area of the law.

A case study will assist in our understanding of the issues that we raise here.

Recently a case came to our notice of a firm of attorneys in Johannesburg, who specialise in collections, demanding payment from a Durban man of a debt due to Health & Racquet Club of several thousand Rand dating back 15 years. When he raised the fact that the company had been declared insolvent 14 years and more ago; and that the claim had prescribed; they told him with a straight face that it was not enough for him to simply claim that the debt had prescribed. They went on to tell him that he was compelled to go to court and to get a “prescription order.” This is absolute rubbish! The attorneys must also have known this and this was entirely misleading and dishonest.

Although it is true that it is only when a court has made a ruling that a debt has prescribed; that this defence will be valid and upheld; it is certainly not necessary to go to court first, and get a court order to that effect. As we know a defendant when being sued for a debt that he believes has prescribed; MUST raise that defence in his plea/ special plea (defence); and will have to prove certain issues as are set out in the above paragraphs numbered 1 to 4; in order to convince the court that the claim has indeed prescribed.

In our view the important lesson to be learned here is that it is patently clear to us that the attorneys, in our case study, knew or at least should have known; that there was no such procedure to get a “prescription order” from the court; and this was a deliberate attempt of their part to mislead the debtor. Not only is this morally wrong; but it also unethical and unprofessional to say the very least.

Once again; the lesson to be learnt. Do not believe everything that you are told by a collection agent or attorney as they will look after their own interests and those of their client; before they give a thought to you and your interests.

As we normally do; we reiterate that if you are wanting to enforce your legal rights and/or when someone demands money from you; it is always wise to first get proper, professional legal advice before you do anything else. You need to know exactly where you stand.

If you have a query regarding a prescribed debt; please contact us at The Legal Advice Office direct and/or our legal consultant, Hugh, as soon as possible for obtaining proper, professional legal advice.

Hugh’s telephone numbers are 082-0932304 (preferred) or 028-3162832, where you can leave a message if he is unavailable. You can also send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. by clicking on the right side BUTTON. Hugh was previously a practising attorney and has 20 years practical experience in the field.

Again; please visit our website if you need any help, legal advice or legal services at www.legaladviceoffice.co.za or send an email to one of our email addresses; either This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it. and we will revert within 48 hours.